It

in regard to the liability of the principal in the case of the sale of goods by his agent, were fully explained by the Court. there appeared that at the time of making a contract of sale, the party buying the goods represented that he was buying them on account of persons resident in Scotland, but did not mention their names; and the seller did not inquire who they were, but afterwards debited the party who purchased the goods. And it was held, that the seller might afterwards sue the principals for the principals. And Lord Tenterden, C. J., observed, "I take it to be a general rule, that if a person sells goods, (supposing at the time of the contract he is dealing with a principal,) but afterwards discovers that the person with whom he was dealing is not the principal in the transaction, but agent for a third person, though he may in the mean time have debited the agent with it, he may afterwards recover the amount from the real principal (0); subject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if at the time of the sale the seller knows, not only that the person who is nominally dealing with him is not principal, but agent, and also knows who the principal really is, and notwithstanding all that knowledge, chooses to make the agent his debtor, dealing with him, and him alone; then, according to the case of Addison v. Gandassequi, 4 Taunt. 574, and Puterson v. Gandassequi, 15 East, 62, the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election, at the time when he had the power of choosing between the one and the other. The present is a middle case. At the time of the dealing for the goods, the plaintiffs were informed that M'Kune, who came to them to buy the goods, was dealing for another; that is, that he was an agent, but they were not informed who the principal was. They had not, therefore, at that time, the means of making their election. It is true that they might, perhaps, have obtained

(0) There can be no doubt that the principal is personally liable upon any contract of his agent, if made within the scope of the authority given, although the agent made the bargain in his own name, and appeared at the time to act for himself, so that in fact the principal could not have been trusted, or his credit or responsibility regarded or required at the time of

the bargain. See 15 East, 67; 4 Taunt. 576, note; and Cothay v. Fennell, 10 B. & C. 671, per Cur. And in Nelson v. Powell, 3 Dougl. 410, the principal was held to be liable, although the vendor had debited, and received monies on account from, the agent, and the principal had remitted money to the agent to discharge the balance.

these means if they had made further inquiry; but they made no further inquiry. Not knowing who the principal really was, they had not the power at that instant of making their election. That being so, it seems to me that this middle case falls in substance and effect within the first proposition which I have mentioned, the case of a person not known to be an agent; and not within the second, where the buyer is not merely known to be agent, but the name of his principal is also known. There may be another case, and that is where a British merchant is buying for a foreigner. According to the universal understanding of merchants, and of all persons in trade, the credit is then considered to be given to the British buyer, and not to the foreigner."

A broker or agent cannot, without the assent of his principal, delegate his authority to another (p).

4. Of the Right of Action of the Principal.

As the contract of the agent is in law the contract of the principal, the latter may come forward and sue thereon, although the agent acted under a del credere commission, and the principal were not known to the other contracting party at the time the agreement was made, and the agent acted as, and appeared to be the principal (q). And the power of the agent to claim and enforce payment, &c., is subservient to the rights of the principal; and therefore if the principal has interfered, and has required, or obtained, a completion of the contract with himself personally, the agent's right of action ceases, although he has not expressly disclaimed it (r). But the implied superior right of action of the principal in his own name, is merged, if he permit his agent to contract personally, or for him, under seal, in a matter within the scope of the agent's authority. In this instance the remedy is only upon the higher security, and in the name of the agent with whom the covenant was entered into (s).

(p) Paley, 128; Henderson v. Barnewall, 1 Y. & J. 387.

(q) Scrimshire v. Alderton, Stra. 1182; The Duke of Norfolk v. Worthy, 1 Camp. 337; Morris v. Cleasby,1 M. & Selw. 579, &c., per Cur.; Bickerton v. Burrell, 5 M. & Selw. 390, 1, per Abbott J.; Cothay v. Fennell, 10 B. & C. 671; Hornby v.Lacy, 6 M. & Selw. 166; ScePaley, 225; Statute 6 G. 4, as to agency on sale of goods, ante, 179.

(r) Id.; Coppin v. Walker, 7 Taunt. 237. The rule may be otherwise where the balance of accounts between the principal and agent is in favour of the latter, and he claims the money, see Hornby v. Lacy, 6 M. & Selw. 166; Paley, 243.

(s) Schack v. Anthony, 1 M. & Selw. 575; Berkeley v. Hardy, 5 B. & C. 355; 8 D. & R. 102, S. C.; Courtenay v. Fisher, 4 Bing. 4.

But it would be unjust to permit the principal to interfere and sue the debtor, to his prejudice, in those instances in which the debtor had innocently, and in ignorance of the claim of the principal, dealt with the agent, he being a fuctor, upon the supposition that he was the principal; a character which he was allowed by his employer to assume, by having the possession of the goods, or being intrusted with the indicia of property therein. If therefore, the defendant has credited, and acquired a set-off (t) against the agent under such circumstances, before the principal interposed, the latter will be affected and bound by the set-off, in the same manner as the agent would be, were he the plaintiff' on the record. But this doctrine seems not to apply where the agent is a mere broker, not having the possession of, or being intrusted with the goods (u). A payment to the agent allowed to act in his own name, where it was not known that another person was the principal, is valid; and where the payment is made to the agent, as such, according to the terms of the contract, and in the usual course of business, the principal, if he has not previously required payment to himself only, shall be bound thereby (x).

If an agent employed to sell coals, make a bargain in his own name with a tradesman to furnish him with coals on credit, for which in return he is to receive goods on credit, and the coals and the goods be both delivered, the real owner and seller of the coals may recover the price of the tradesman, if his, the real owner's, name be in the tickets sent with the coals; because the tradesman, having such tickets, is bound to inquire into the nature of the agent's situation, and should not continue to treat him as principal (y).

5. When the Agent is Personally liable.

Upon the principle that the contract of an agent is the contract of the principal, an agent is not liable upon an agreement he makes in his representative capacity: provided he do not personally con

(1) George v. Claggett, 7 T. R. 359; Waring v. Farenck, 1 Camp. 85; Farebrother v. Simmons, 5 B. & Ald. 335; Westwood v. Bell, Holt's N. P. R. 124; Carr v. Hinchcliff, 4 B. & C. 547; 7 D. & R. 42, S. C. See the statute, 6 G. 4, ante, 180; post, tit. Set-Off

(u) Baring v. Corrie, 2 B. & Ald.

137; statute 6 G. 4, ante, 180.

(x) Post, Index, Payment; 6 G. 4, cited, ante, 180. A payment of cash to a traveller who collects orders in the country binds the principal, but not a payment in other goods. Howard v. Chapman, 4 C. & P. 508.

(y) Pratt v. Willey, 2 C. & P. 350.

tract, or expressly pledge his own credit, by concealing his principal, or otherwise; and provided he do not so far exceed his powers, as to render his principal irresponsible (≈).

If an agent, by deed under his own hand and seal, covenant" for himself, his heirs, &c.," for the act of another, he is personally liable upon his covenant, although he describe himself in the deed as covenanting "for and on the behalf" of another person (a). So, where the defendant, by a written agreement, expressed to be made by himself, "on behalf of A. B., of the one part," and the plaintiff of the other part, stipulated, that "he, (the defendant,) would execute to E., (the plaintiff,) a lease of certain premises." which, as it was proved, belonged to A. B.; Best, C. J., held that the defendant was personally liable; observing, that there was no distinction between deeds and parol agreements, in this respect (b). And where the solicitors of the assignees of a bankrupt tenant, upon whose lands a distress had been put by the landlord, gave the following written undertaking;-" We, as solicitors to the assignees, undertake to pay to the landlord his rent, &c.," it was decided that they were personally liable (c). Holroyd, J., observed, that if the defendants were not liable, nobody was found by the undertaking; it being clear that the assignees were not bound. And if the attorneys on both sides, on an indictment against a parish for not repairing a road, enter into an agreement, in which one attorney, "on the part of the parish agrees to pay the costs," this is considered a personal engagement on the part of such attorney (d). And an attorney, who, in writing, "personally" undertakes that a record shall be withdrawn, and

(2) See Paley, 251, &c.; 1 Chitty Pl. 5th ed. 40; 3 Chitty Com. L. 211, &c.; Paterson v. Gandasequi, 15 Fast, 62; Spittle v. Lavender, 5 Moore, 276, post, 185; M'Brain v. Fortune, 3 Camp. 317. Mere bearer of money not liable; Coles v. Wright, 4 Taunt. 198. And as to the persons who may in general be sued for money received by them as agents, &c., see post, Index, Money had and received; 1 Chitty Pl. 5th ed 40, 41.

(a) Appleton v. Binks, 5 East, 148. In Hancock v. Hodgson, 12 Moore, 504; 4 Bing. 269, S. C.; it was held, upon the construction of a deed for the purchase of miues for a company,

that the directors (the defendants) were personally liable for the purchase money, after a given period, though they described themselves "as directors on behalf of the company," and the money was to be paid out of the monies to be raised within a certain period, &c.

(b) Norton v. Herron, 1 R. & M. 229; 1 C. & P. 648, S. C. See Spittle v. Lavender, 5 Moore, 278.

(c) Burrel v. Jones, 3 B. & Ald. 47. See Spittle v. Lavender, 5 Moore, 278. Solicitor not in general liable, Hartop v. Juckes, 2 M. & Selw. 439.

(d) Watson v. Murrell, 1 C. & P.

307.

costs paid, in a cause in which he is concerned for another, is liable to be sued upon such engagement (e). In such case, the attorney could not be considered a surety, for his client was not bound by the arrangement. If, however, the instrument evinces an intention that the agent should not be liable, he is not responsible, though words are used which, per se, might render him so. Therefore, where A., an auctioneer, being employed by B. to sell an estate belonging to him, entered into and signed an agreement with C., for the purchase, in his own name, as agent of B.; and B. shortly afterwards signed it, and added, “I hereby sanction this agreement, and approve of 4.'s having signed the same on my behalf;" it was held, that A. was not personally responsible (ƒ). The Court considered that the agreement of A., and the ratification thereof by B., formed but one transaction, and manifested an understanding by all parties that A. was not personally liable; independently of the instrument signed by A. being, of itself, open to such construction.

6. When an Agent may sue.

A servant, or agent, cannot sue upon a contract entered into by him as such (g), unless he has some beneficial interest in its completion, in respect of commission, or otherwise, or a special property or interest in the subject matter of the agreement; as in the cases of a factor, or broker (h); or a carrier, or a warehouseman (i); or an auctioneer (k); or other similar agent, acting for reward, or having a special property or interest, and not being a mere servant (1). These may sue, unless the principal elect to bring the

(e) Iveson v. Conington, 1 B. & C. 160; 2 D. & R. 307, S. C.; Prosser v Allen, Gow R. 117; Redhead v. Cator, 1 Stark. R. 14.

(ƒ) Spittle v. Lavender, 5 Moore,

270.

(g) 1 Chitty Pl. 5th ed. 7. Thus the mere treasurer of commissioners contracting for them, Pigott v. Thompson, 3 B. & P. 147; or the mayor of a corporation contracting for the corporate body, Brown v. Morris, 2 Taunt. 374; cannot sue in his own name. Nor can the captain of a ship sue on an implied contract for demurrage, Brownker v. Scott, 4 Taunt. 1; Evans v. Forster, 1 B. & Ad. 118. Policy Broker, 1 Chitty Pl. 5th ed. 8, and note (h).

(h) Sudler v. Leigh, 4 Camp. 195;

Morris v. Cleasby, 1 M. & Selw. 581; Atkinson v. Hamber, 2 Esp. R. 493. When a broker signing the sale note for the vendee cannot sue him for not accepting the goods, see Rayner v. Linthorne, R. & M. 325, 2 Č. & P. 124, S. C.

(i) See per Lord Ellenborough, Martini v. Coles, 1 M. & Selw. 147.

(k) Williams v. Millington, 1 Hen. B'a. 81; see 7 Taunt. 237; 2 Marsh. 497, 501, S. C.; 5 B. & Ald. 333.

(1) Gardiner v. Davies, 2 C. & P. 49; Joseph v. Knox, 3 Camp. 320; Langstroth v. Toulmin, 3 Stark. R. 147; Garrett v. Handley, 4 B. & C. 666, 7 D. & R. 144, S. C.; Dancer v. Hastings, 4 Bing. 2.